Reva
Siegel & Mary Ziegler
We have just posted Comstockery on SSRN,
the first legal history of the Comstock Act since the antiabortion movement
began arguing for reviving enforcement of the law in the wake of Dobbs
v. Jackson Women’s Health Organization. The movement
has advanced claims to revive enforcement of this 1873 federal obscenity
law—whose long-unenforced provisions cover abortion-related articles—in courts
and in the presidential campaign. This post provides a brief update.
On March 26, Food and Drug Administration v.
Alliance for Hippocratic Medicine will return to the Supreme Court.
Representing the Alliance, the Alliance
Defending Freedom (ADF), a leader of the Christian legal movement
that has played key roles in 15
Supreme Court cases, including Dobbs and 303
Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone,
a drug used in more than half of all abortions, under the relevant laws and regulations.
ADF has further sought to overturn several subsequent FDA decisions, including one
in 2021 permitting the use of telehealth for medication abortion. In the case
now before the Court, ADF argues that the removal of an in-person-visitation requirement
was arbitrary and capricious under
the APA. ADF also makes a Comstock claim against the 2021
modification, asserting that the plain meaning of the statute bars the mailing
of any
abortion-related article. This argument has received
attention from conservative judges, including Judge James Ho of
the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted
a motion for preliminary injunction in the spring of 2023 that would have
withdrawn the approval of mifepristone, reasoning that the statute plainly declares
“nonmailable” anything “advertised or described in a manner calculated to lead
another to use it or apply it for producing abortion.”
Whether or not the Court or some Justices reach the Comstock claim, Alliance
for Hippocratic Medicine is a vehicle for spotlighting Comstock claims that
are now asserted in several arenas. Comstock revivalists, including
Jonathan Mitchell—who represented Donald Trump before the Supreme Court in the
ballot-disqualification case and just won the Deanda
case in the Fifth Circuit expanding parental rights over minor access to
contraception—argue that the Comstock Act bans the mailing or receiving
of any abortion-related item without exception—and thus, that the Comstock Act
serves as a backdoor ban on all abortions. “Even though the
Comstock law does not ban abortion literally,” Mitchell has explained, “it bans
the shipment or receipt of any abortion-related equipment,” and no
abortion takes place in the United States without some item sent in the mail. Mitchell
and his colleague, the preacher Mark Lee Dickson, have written the Comstock Act
into local ordinances they describe as creating “sanctuary cities for the unborn.”
Comstock has also come to
play a significant role on the campaign trail. Antiabortion figures close to
Donald Trump had made the Comstock Act the centerpiece of a presidential
transition plan, The Mandate for
Leadership, led by the Heritage Foundation and developed by more than 70
conservative groups. Under Trump, explains the Mandate for Leadership, the Department of Justice should prosecute drug
manufacturers and providers who supply abortion pills. Mitchell has been clear
that the Comstock Act could be transformed into the abortion ban that the
antiabortion movement could never convince the American people to enact. “We don’t need a federal ban,” Mitchell
recently told the New York Times,
“when we have Comstock on
the books.”
In
an article
forthcoming in the Yale Law Journal, we provide a legal history of
the Comstock Act. We cover the drafting, enactment and evolving enforcement of
the obscenity statute over decades when the postal
service was the nation’s primary network of communication, well before
modern understandings of the First Amendment. We first show how Comstock
censorship of speech and things in the United States mail and other media provoked
conscientious objection and popular resistance, and then demonstrate that the
public’s response to this censorship, called “Comstockery,” played an
important role in germinating our traditions of free speech and of sexual and
reproductive freedom. The article offers critical resources for evaluating claims for
revived enforcement of Comstock now asserted in courts and in politics.
We challenge
revivalist claims now advanced in the courts and on the campaign trail on two
grounds—contesting claims about the law’s meaning and its democratic legitimacy.
First, unlike revivalists,
we demonstrate that the meaning of procuring or producing abortion was not
plain or absolute at the time of enactment or today. The statute was an
innovative form of obscenity law whose meaning was underdetermined at enactment
and evolved dramatically over time, diverging widely from the abortion ban
advocates construct today. In a history that ranges over debate about dildos, condoms,
and medical texts on the symptoms of venereal disease, we show that the Comstock provision censoring “any article or thing designed or intended for the
prevention of conception or procuring of abortion [or] any article or thing
intended or adapted for any indecent or immoral use or nature” was concerned
about suppressing illicit sex, not about obstructing access to needed medical
care—as courts ruled in increasing numbers, culminating in the widely cited and
reported appellate decisions of the 1930s. Our reading of the Comstock law’s
enactment text and history offers another important perspective on the
authority of the 1930s decisions whose congressional ratification the Office of Legal Counsel Memo demonstrates.
Second,
we show that there are deep problems of democratic legitimacy in reinventing the
Comstock Act as a twenty-first century abortion ban. The public’s view of the obscenity statute as Comstockery—as illegitimate—led
to the statute’s declining enforcement and evolving interpretation in the
1930s. Arguments for revival, especially
textualist claims that disparage the significance of the statute’s historical
context, misread the statute and assume the Comstock statute’s democratic
legitimacy: they reason about the law as if it were duly enacted by a
democratically legitimate body and
that the public had ordinary opportunities for debate over its enactment,
revision, and repeal.
Comstock’s
history shows the deepest problems with reviving enforcement of the law is that
the law was not enacted or enforced
in conformity with any of the presuppositions of contemporary democracy. There
is the fundamental fact that only a minority of adults were entitled to vote on
the statute’s enactment, and that those whose lives would be the most affected
by the law were the least able to shape its terms. But this is hardly the Comstock’s
law’s only democratic legitimacy problem.
Aggravating
women’s exclusion from deliberation over the law’s passage is the government’s
long running effort to prevent women and men from securing the law’s repeal.
Unlike other laws enacted under voting restrictions we would today call
unconstitutional, this statute was insulated from criticism and repeal by generations
of censorship and surveillance whose effect was to deform the democratic
political process for generations after. Federal appellate decisions interpreting the contraceptive
and abortion provisions of the Comstock Act exerted authority both because they
were rooted in a fair reading of the federal obscenity statute and in deep public support forged in
popular conflict over the statute’s enforcement.
Our article uncovers in conflicts over Comstock’s
enforcement popular claims on democracy, liberty, and equality in which we can
recognize roots of modern free speech law and the law of sexual and
reproductive liberty lost to constitutional memory. Understanding Comstock’s history allows us to tell a
different story about the origins of cases like Roth, Griswold, and Roe, one that reaches back to the men and women resisting the
state’s efforts, under Comstock, to control political speech and the sexual and
reproductive lives of the American people—a story that gives new meaning to
American traditions of liberty and democracy. If there is any feature of the
Comstock story that warrants reviving, it is the voices of these forgotten
authors of our constitutional present.
Reva Siegel is Nicholas deB. Katzenbach Professor of Law at Yale Law School. You can reach her by e-mail at reva.siegel@yale.edu.Mary Ziegler is Martin Luther King Jr. Professor of Law at U.C. Davis School of Law. You can reach her by e-mail at mziegler@ucdavis.edu.